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The U.S. Court of Appeals for the 1st Circuit reinstated a $675,000 damages award against Boston University graduate student Joel Tenenbaum for illegal music downloading, but remanded the case for review of whether the verdict was excessive. The Sept. 16 ruling in Sony BMG Music Entertainment v. Tenenbaum reinstated the original District of Massachusetts July 2009 copyright infringement verdict, which boiled down to $22,500 for each of 30 songs. The 1st Circuit found that U.S. District Judge Nancy Gertner erred in July 2010 by cutting the verdict by 90% to $67,500 on the ground that it was excessive enough to violate Tenenbaum’s due-process rights. The 1st Circuit said Gertner should have first considered Tenenbaum’s common law remittitur argument that the statutory damages award was disproportionate. The court remanded the case for review on that ground. Chief Judge Sandra Lynch wrote the opinion, joined by judges O. Rogeriee Thompson and Juan Torruella. “A decision on a constitutional due process question was not necessary, was not inevitable, had considerable impermissible consequences, and contravened the rule of constitutional avoidance,” Lynch wrote. That rule, which requires courts to avoid deciding constitutional questions before they must, “had more than its usual import in this case because there were a number of difficult constitutional issues which should have been avoided but were engaged,” Lynch wrote. The Recording Industry Association of America, which has taken a lead role in filing and commenting on the music downloading cases, was “pleased the Court agreed with us that the finding of liability was correct and that the District Court erred in finding the verdict unconstitutional,” said Jennifer Pariser, senior vice president for litigation and legal affairs. Paul Clement, a partner at Washington’s Bancroft law firm and a former U.S. solicitor general, argued the case for the music companies while he was a partner at Atlanta’s King & Spalding. The U.S. Department of Justice, which intervened in the case to argue that Gertner should have avoided the constitutional questions, did not respond to requests for comment. Tenenbaum’s trial lawyer, Harvard Law School professor Charles Nesson, one of three people who argued for him before the 1st Circuit, declined to comment. Julie Ahrens, a representative of amicus the Electronic Frontier Foundation, and Jason Harrow, a Harvard Law student at the time of the April oral argument, also argued for Tenenbaum. Ahrens said the 1st Circuit’s decision on the remand issue “seems to ignore the real costs that that process will impose on everyone.” Tenenbaum, a 27-year-old graduate student, said he can’t afford to pay $67,500, let alone $675,000. “We’ll continue to take this as far as it goes,” Tenenbaum said. “We definitely aren’t done yet.” Sheri Qualters can be contacted at [email protected].

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